M E M O R A N D U M
TO: Andrew Cohen, Esq.
FROM: xxxxxxx
DATE: June 18, 2015
RE: Judicial Questioning and Bias
The following is a legal analysis relating to judicial questioning of witnesses in civil, non-jury trials, and when that questioning can be construed as judicial bias. Although judges are generally permitted to question witnesses, the following will detail the extent to which judges may participate, or interfere, in the trial process without demonstrating bias. Particular attention has been paid to Massachusetts civil cases, although the richest source of research comes from criminal actions. Federal and state cases from other jurisdictions have also been included for sake of comparison.
ISSUES PRESENTED
I. What rules govern judicial questioning of witnesses?
II. What are the factors or inquiries in determining judicial bias?
III. Can a judge’s off-the-record comments show bias? If so, how does the party alleging bias make an offer of proof as to the off-the-record statements?
IV. Must the party alleging judicial bias make a showing of harm, or is bias a formal error that is not subject to a harmless error analysis?
I. RULES GOVERNING JUDICIAL QUESTIONING OF WITNESSES
(a) Rules of judicial conduct are governed by constitutional law, common law and administrative rules of the court.
Pursuant to Article XXIX of the Massachusetts Constitution, as well as the due process clause of the Fourteenth Amendment, “it is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.” U.S. Const. amend. XIV, § 1; MA Const., art. XXIX, § 1; Whitney v. Wellesley & Boston St. Ry. Co., 197 Mass. 495, 502 (1908). The Supreme Judicial Court of Massachusetts has enacted the Code of Judicial Conduct (the “Code”) in an effort to establish standards governing the ethical conduct of judges. S.J.C. Rule 3:09 (2003). The Code is authoritative and binding, but not an exhaustive guide. Disciplinary action of a judge will be pursued if any provision of the Code is violated. Although no absolute rule exists as to the extent of judicial questioning allowed, the exercise of judicial restraint is required under the “rules of reason” to determine the potential for prejudice. S.J.C. Rule 3:09 (Preamble); Commonwealth v. Campbell, 371 Mass. 40, 45 (1976); Kuczynski v. Alfano, 402 Mass. 1001 (1988) (reversing judgment in wrongful death action because “sharp” questioning of plaintiff’s witnesses was not consistent with judge’s impartial role).
In addition, the Judicial Institute of the Massachusetts Court System has instituted its own judicial guidelines for civil hearings involving self-represented litigants. “Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants with Commentary.” Judicial Institute, Administrative Office of the Trial Court (8/18/06) (“Judicial Guidelines”). These guidelines, as well as the rules of evidence, permit the court to interrogate witnesses for the purpose of obtaining general information and clarifying testimony. Judicial Guidelines, 3.1; Fed. R. Evid. 614(b).
The extent of questioning may also be defined by the nature of the proceeding. For instance, wide discretion in judicial questioning is allowed in small claims proceedings as an essential tool for discovery of facts and determination of justice. McLaughlin v. Municipal Court of Roxbury, 309 Mass. 397, 405 (1941). Such authority is granted, as litigants are generally not assisted by counsel during such informal proceedings. Id.
In In Interest of A the parents urged the court to adopt the rule for criminal proceedings imposing greater limitation on judges’ discretion to question witnesses, arguing that the serious consequences and heightened burden in termination of parental rights proceedings were more akin to criminal actions than to civil actions. 283 N.W.2d 83, 85 (N.D. 1979). Although in criminal proceedings the constitutional safeguards may be more strictly construed than in civil proceedings, judicial discretion is not extinguished. State v. Weind, 50 Ohio St. 2d 224, 235-36 (1977). Nevertheless, the court reasoned that, unlike in criminal proceedings, the judge in juvenile actions is the sole trier of fact, the proceedings are less adversarial, and the purpose of the proceedings is not to punish the parents but to protect the welfare of the children involved. In Interest of A at 86. Thus, the court declined to adopt the criminal standard of judicial discretion and affirmed the broader discretion afforded judges in civil and juvenile proceedings. Id.
(b) The judge is permitted to actively participate in courtroom proceedings as the “directing and controlling mind” at trial.
It is considered a duty of the trial judge to be “the directing and controlling mind at the trial, and not a mere functionary to preserve order.” Commonwealth v. Lewis, 346 Mass. 373, 379 (1963). The trial judge is not required to “take a vow of silence,” but is obligated to actively participate in the proceedings to assure justice is done with efficiency and without unnecessary waste of time. Commonwealth v. Haley, 363 Mass. 513, 519 (1973). “Where a court has once taken jurisdiction and has become responsible to the public for the exercise of its judicial power so as to do justice, it is sometimes the right and even the duty of the court to act in some particular sua sponte.” Quincy Trust Co. v. Taylor, 317 Mass. 195, 198 (1944); see also 9 John Wigmore,Evidence in Trial Courts at Common Law § 2484 (J. H. Chadbourn rev. 1981) (“[The judicial power] implies inherently a power to investigate as auxiliary to the power to decide; andthe power to investigate implies necessarily a powersummon and to question witnesses…”) (emphasis in original).
A proper judicial interrogation of witnesses is permitted to clarify testimony or elicit material facts of the case, so long as such questioning is not partisan or biased. Haley at 520; Commonwealth v. Oates, 327 Mass. 497, 499 (1951) (affirming rape conviction as judicial examination was done merely to clarify the purpose of admitting defendant’s jacket into evidence); Commonwealth v. Dias, 373 Mass. 412, 416 (1977) (impartial questioning was meant to draw out additional facts material to the fatal shooting, not coerce a retraction by the witness); Adoption of Seth, 29 Mass. App. Ct. 343, 350 (1990) (affirming termination of parental rights as judge’s “extraordinary” questioning was not prompted by bias, but rather his impatience with counsel’s inability to properly pose questions).
Finally, the Canons of Judicial Conduct require a trial judge to be “patient and courteous” to counsel, and to never unfairly criticize or humiliate defense counsel or a defense witness during proceedings. S.J.C. Rule 3:09, Canon 3(b)(4); e.g. Walworth County Dep’t of Health & Human Servs. v. Roberta J.W. (In re Termination of Parental Rights to Exsavon A.J.), 2011 Wisc. App. LEXIS 496 *34 (“[i]mpeaching witness credibility is counsel’s role and not the role of the trial judge”).
(c) Bias may be shown through the trial record or by affidavit.
To support a claim of judicial bias, the moving party must provide substantiated citations to the trial record, or a detailed affidavit by counsel demonstrating that the judge’s opinions or attitudes denied a litigant a fair trial. For example, by extracting material portions of the transcript consisting of cross-examination done by the trial judge, counsel successfully proved that the judge’s actions were not consistent with an impartial factfinder. Gauntlett v. Medical Parameters, Inc., 10 Mass. App. Ct. 88, 94-95 (1980). In addition, extensive citations to the trial record conveying the open hostility of the judge toward defense witnesses was sufficient to reverse a judgment in defendant’s favor. Adler v. U.S., 182 F. 464, 472 (5th Cir. 1910).
An affidavit filed in good faith by the party asserting the bias must contain the basis for the claim and evidence of impartiality. In re J.A., 601 A.2d 69, 76 (D.C. 1991). However, it is sometimes difficult to prove the extent of bias demonstrated, because the tone and manner used by the judge cannot be easily discerned from the transcript. Commonwealth v. Fitzgerald, 380 Mass. 840, 846 (1980).
II. FACTORS IN DETERMINING JUDICIAL BIAS
(a) Singling out or admonishing a witness may be indicative of judicial bias.
A defendant may be deprived of a fair and impartial decision by the judge if witnesses are singled out or admonished by the court. For instance, judgment in Webb was reversed after the trial judge provoked the refusal of the sole defense witness to testify, when he informed the witness that “if [he] lied under oath” the judge would “personally” see to it that he was “indicted for perjury.” Webb v. Texas, 409 U.S. 95, 96-97 (1972); Commonwealth v. Sneed, 376 Mass. 867, 870 (1978) (reversing judgment after trial judge questioned only defense witness’s credibility and “unjustifiably” admonished the witness regarding the dangers of perjury). No state witnesses had been so admonished, tending to show the judge’s bias against defendant. Webb, 409 U.S. at 96.
(b) Overzealous judicial questioning may portray the judge as advocate for one side over the other.
Far-reaching and excessive judicial questioning and intervention are not consistent with the judge’s role as an impartial factfinder. Gauntlett, 10 Mass. App. Ct. at 95; Band's Refuse Removal, Inc. v. Fair Lawn, 62 N.J. Super. 522, 545 (Super. Ct. App. Div. 1960) (over the course of the proceedings, the judge “examined and cross-examined [witnesses] at length. He offered exhibits he had called for.He ruled upon the propriety of his own questions and upon the admissibility of his own exhibits,” prompting reversal). In fact, a judge’s extraordinary or inappropriate involvement may show a bias for one party over another, lacking the necessary impartiality required for a fair trial. Adoption of Seth, 29 Mass. App. Ct. at 350. A close reading of the transcript may assist in determining any bias demonstrated by the judge. Id; Roberta J.W., 2011 Wisc. App. LEXIS 496 *4 (the court noted the judge’s interjection on 95 of the 104 pages of the transcript of mother’s testimony in its finding of judicial bias); see also United States v. Hickman, 592 F.2d 931 (6th cir. 1979) (interruption by judge more than 250 times during the proceedings resulting in reversal of convictions).
In Adoption of Norbert, the dissent disagreed with the majority that the judge’s participation, in extreme excess to that of the attorneys, did not result in a violation of due process. 83 Mass. App. Ct. 542, 548 (2013) (J. Hanlon, dissent). In this context, it was not the content of the judge’s questions, but rather the scale of interference by the judge that was at issue. Id.; Roberta J.W., 2011 Wisc. App. LEXIS 496 at *27 ([i]n general it is the quality rather than the quantity of judicial involvement in questioning witnesses that determines whether reversible error has occurred, but often the greater the involvement, the higher the likelihood that the judge is effectively usurping the role of counsel, which calls for reversal) (emphasis in original). However, the majority in Norbert concluded that although the judge’s questioning went beyond what is reasonable, it was not prejudicial as “the judge's detailed (and uncontested) findings…unequivocally support the judge's determination that the termination of parental rights serves the best interests of the children.” Id.
Overzealous involvement by the trial judge may not be prejudicial if it is prompted by interests of efficiency or justice. Quincy Trust Co. 317 Mass. at 198. For instance, no bias was found where the trial judge ordered DSS counsel to obtain an expert psychiatrist to support previously admitted evidence depicting the mother’s parental unfitness. Adoption of Seth, 29 Mass. App. Ct. at 346. The judge’s extensive involvement in the expert’s questioning was not prejudicial to the mother, but merely a “reflection of impatience” by the judge in the department’s inability to pose adequate questions. Id. at 351.
Additionally, the judge should not be cast in a dual role of factfinder and prosecutor. For instance, the judge in Furtado developed evidence against the husband in a criminal contempt hearing by questioning the Probate Court probation officer in the absence of a prosecutor. Furtado v. Furtado, 380 Mass. 137, 151 (1980). Even though the judge did not act in an aggressive or vengeful manner, reversal was warranted because the judge’s active involvement in the presentation of the case denied the defendant a fair trial before an impartial factfinder. Id. at 51; Band's Refuse Removal, 62 N.J. Super. at 547 (citing Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958)) (“[t]here is a point at which the judge may cross that fine line that separates advocacy from impartiality. When that occurs there may be substantial prejudice to the rights of one of the litigants”).
III. OFF-THE-RECORD COMMENTS MAY SHOW JUDICIAL BIAS
Comments or questions from a judge derived from a source outside the proceeding may deprive a defendant the right to a fair trial. Tumey v. Ohio, 273 U.S. 510, 523 (1926). A judge must be scrupulous in maintaining unfamiliarity with disputed matters of a proceeding, including extraneous facts that should be unknown by the presiding judge. Furtado, 380 Mass. at 151. Hanson v. Hanson, 36 P.2d 1181, 1184 (Alaska 2002) (holding that party alleging bias must demonstrate that such personal bias stemmed from an extrajudicial source).
If a party alleging bias can show that the judge’s knowledge of material facts was obtained from “outside the four corners” of the courtroom, the judge may be disqualified or his decision reversed. Greenhow v. U.S., 490 A.2d 1130, 1136 (D.C. 1985); 28 U.S.C. § 455(a). However, if the judge’s knowledge and opinion is properly and necessarily acquired during the course of the proceedings, or from a prior proceeding relating to the same parties, there is no prejudice to the defendant. Liteky v. U.S., 510 U.S. 540, 551 (1994). For example, a District of Columbia court held that a judge’s ex parte contacts did not affect his impartiality, as his telephone conversation with the probation officer from the mother’s divorce case did not cover new ground outside the pending action before the court. In re J.A., 601 A.2d 69, 75 (D.C. 1991).